Why hate crimes are hard to prosecute | Toronto Star

Anti-Semitic vandalism inside a North York condo. Protests against Islam outside a downtown mosque. And the emergence of a video — reportedly filmed in that same mosque — capturing a prayer that was “offensive to those of Jewish faith.”It’s...

Why hate crimes are hard to prosecute | Toronto Star


It’s been a bigoted few weeks for Toronto, where a spate of high-profile incidents have catapulted hate crime allegations into newspaper headlines and Facebook feeds.

The three incidents are being investigated by Toronto police, but whether criminal charges will be laid remains to be seen.

The road ahead for investigators is a bumpy one. Hate crimes occupy a murky corner of the justice system: The burden of proof is high, conviction rates are low and what actually constitutes a “hate crime” isn’t explicitly defined by the Criminal Code.

“When we get to the criminal law, there is no such thing as a ‘hate crime’ in and of itself,” said Mark Freiman, a lawyer with Lerners LLP and former deputy attorney general of Ontario.

“I think the public expects that there is a separate category called a ‘hate crime,’ with its separate definition, and that people can be charged with a hate crime.

“In reality, that seldom happens.”

Canadian lawmakers have recognized hate crimes as serious matters that require legal remedies. According to a memorandum that provides guidance to Ontario prosecutors, hate crimes “eat away at the social fabric of our communities” and “can be seen as a form of terrorism of the targeted group.”

“Hate crimes are very serious because their impact can be devastating,” the memorandum states. “Because hate crimes divide, disenfranchise and potentially destabilize society, the public interest in their prosecution is significant.”

There is no specific offence under the Criminal Code called “hate crime.”

Police have a number of different legal avenues they can pursue when investigating hateful activity and each has its own road-bumps and potential dead-ends.

Any crime can qualify as a hate crime if prosecutors prove that hatred was a driving force.

Motivation is the dividing line between a regular crime (a Jewish-owned business vandalized by drunk teens on prom night, say) and a hate crime (a Jewish-owned business vandalized by neo-Nazis on International Holocaust Remembrance Day).

But in these cases, the hateful aspects of the crime are recognized during sentencing, not on the charge sheet.

Take the case of 233 Beecroft Rd., where several condo residents recently discovered notes on their doors, at least one of which had a swastika and the message “No Jews.” A number of mezuzahs, parchments with religious verses affixed to the doorposts of Jewish households, were also vandalized.

If the culprits are caught, police will probably lay mischief-related charges, Freiman says. But during sentencing, prosecutors can argue that hate was an aggravating factor. This enables a judge to hand down a harsher sentence.

The key is to prove motivation: What was the person thinking when they decided to commit the crime?

For prosecutors, this is a slippery task.

“Frankly, that’s one of the reasons I think why ‘hate crimes’ aren’t free-standing criminal code offences,” Freiman said. “The prosecutor would have to prove, beyond a reasonable doubt, the motivation, which would be very difficult.”

Prosecuting hate becomes even thornier when the alleged crimes take the form of speech or another form of expression.

Toronto police are investigating two incidents that could fall under this category.

On Feb. 17, a downtown mosque, Masjid Toronto, was briefly swarmed by a small group of people protesting M-103, a parliamentary motion to condemn and combat Islamophobia.

Some protesters held signs with statements such as “Muslims are Terrorists” and “Say no to Islam.”

The mosque filed a report with the police Tuesday.

The next day, another complaint was made, this time against Masjid Toronto by the Jewish Defence League of Canada. The JDL is affiliated with a U.S. organization that the Southern Poverty Law Center characterizes as “a radical organization that preaches a violent form of anti-Arab, Jewish nationalism.”

The JDL’s complaint is based on video taken inside the mosque, which the group alleges showed someone making anti-Jewish statements during prayers. The video was posted to YouTube and has since been removed.

According to a statement provided by the Muslim Association of Canada (MAC), which is affiliated with the mosque, a junior employee made “unauthorized” supplications in Arabic last summer that were “offensive to those of the Jewish faith.” The mosque has now suspended the employee pending an internal investigation and apologized to the Jewish community, stating the language used was “unacceptable and against the values and practices of MAC.”

Under the Criminal Code, there are three sections that deal with hate propaganda, all created in 1970 following a surge of anti-Semitic activity in Canada.

One bans the public incitement of hatred toward an identifiable group.

But incitement isn’t enough to justify a charge; the activity must also be “likely to lead to a breach of the peace,” according to the Criminal Code.

“That’s going to be the crux,” Freiman said. “It’s easy enough to show you’re inciting violence or hatred against an identifiable group.

“The question is: Is that incitement likely to lead to a breach of the peace?”

The bar is even higher for the other two hate propaganda crimes: advocating or promoting genocide, and making public statements that “wilfully promote hatred against any identifiable group.”

For both crimes, police need permission from the Attorney General of Ontario before they can lay charges.

This is an extraordinary provision required for only a handful of crimes, according to Richard Moon, a hate speech expert and law professor with the University of Windsor.

The law recognizes several acceptable defences for the “wilful promotion” offence; for example, if the statements are true, or if they are “relevant to any subject of public interest, the discussion of which was for the public benefit.”

The threshold for charging someone with hate propaganda is extremely high.

Legal experts say it is meant to be.

“It reflects an awareness that free speech is at stake here,” Moon said.

“The drawing of lines between what should be protected speech, and what really is viewed as harmful speech, is a difficult one. There’s always going to be controversy and disagreement.”

The result is very few people have been charged under hate propaganda laws.

Convictions are even rarer.

According to Statistics Canada, there were only 26 court cases between 2010 and 2015 involving hate propaganda offences or mischief relating to religious property.

Of those, only 14 resulted in a guilty verdict.

The National Council of Canadian Muslims would like to see more resources devoted to policing and prosecuting hate crimes.

While Toronto police say they haven’t noticed an increase in hate crime reports, the NCCM, which tracks anti-Muslim incidents across the country, says it has definitely seen a recent surge, according to spokesperson Amira Elghawaby.

In the face of growing hate rhetoric worldwide, and in the wake of the recent mosque attack in Quebec City, the need for effective hate crime policing is more urgent than ever, says Bernie Farber, a hate crime expert and executive director with the Mosaic Institute.

“It’s a unit that really needs expertise,” Farber said.

“My real urging would be the re-establishment of active anti-hate units in police forces across the country.

“This matter is not going to get better; it’s only going to get worse.”



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